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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to
decisions of National Umpire Oscar A. Ornati filed by the Union under section
7122(a) of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. The Agency filed an
opposition to the Union's exceptions. Both parties filed additional submissions
which have been considered in reaching this decision.(2)

In the course of negotiations over flexitime at the
Agency's headquarters, the Umpire made an interim decision in which he ruled
that three disputed Union counterproposals were negotiable. In a subsequent
final decision, the Umpire ruled that the parties were at impasse over the
disputed proposals and that he had jurisdiction over the dispute under the
advisory final offer selection procedure of Section 8.06 of the parties'
collective bargaining agreement. The Umpire ruled that "Management's Final
Offer Flexitime Proposal" was the most reasonable and should be implemented by
the parties. Final Decision at 8.

The Union contends that the Umpire exceeded his authority
under the collective bargaining agreement by issuing the two decisions. We find
that we lack jurisdiction to review the Union's exceptions because the Umpire's
interim and final decisions do not constitute "arbitration under [the Statute]"
within the meaning of section 7122(a) of the Statute. Therefore, we will
dismiss the Union's exceptions. In view of the Agency's uncontroverted
statement that it has corrected the erroneous billing for the Umpire's
services, we will dismiss that portion of the Union's exceptions as
moot.

II. Background

On October 31, 1988, the Agency informed the Umpire that
it was at impasse with Union Local 2667 in negotiations over flexitime at the
national headquarters. The Agency requested the Umpire to rule on the
negotiability of three Union counterproposals under the voluntary advisory
impasse procedure contained in the collective bargaining agreement. The
procedure is intended to be used before taking matters to the Federal Service
Impasses Panel (Panel). Section 8.06 of the agreement provides as
follows:

ADVISORY FINAL OFFER SELECTION PROCEDURE

Section 8.06Advisory Final Offer Selection
Procedures

(a) At impasse or upon completion of the negotiation
procedures specified in this Article, whichever occurs first, either Party may
refer the last best offers of the UNION and EMPLOYER described in Section
8.05(b) of this Agreement to the Umpire for advisory selection of the offer
which is the most reasonable under all of the circumstances. A decision shall
be made by the Umpire within five (5) workdays from receipt of the last best
offer. In making such a determination, the Umpire may not deviate from the last
best offers of the Parties and must select either the UNION's or the EMPLOYER's
proposal.

(b) Thereafter, the Parties agree that the offer
selected shall be implemented by the EMPLOYER pending final resolution of the
dispute by the Federal Service Impasses Panel (FSIP) if requested by either
Party.

(c) To the extent any final decision of the FSIP is
inconsistent with the final offer so implemented in the interim, the
implemented final offer shall be modified as of the effective date of the FSIP
decision. However, employees will be reimbursed for any loss of pay they would
have received if the FSIP decision had been implemented in lieu of the Umpire's
decision.

(d) Final offer selection by the National Umpire shall
normally be on the basis of written submissions and briefs unless either Party
wishes to present oral arguments.

National Agreement at 11-12.

The Union challenged the Umpire's jurisdiction in the
matter on the ground that the negotiations were at the local level rather than
national level. The Union also denied that the parties were at
impasse.

III. Umpire's Interim and Final
Decisions

The Umpire issued an interim decision on November 14,
1988, in which he stated that he did not have enough information to rule on the
Union's challenges to his jurisdiction. However, the Umpire ruled in the
interim decision that "the three items as specified above do not violate any of
the employer's substantive rights." Interim Decision at 5. He also stated that
a document submitted by the Agency "labeled Union Counterproposal no. 4,
irrespective of its appropriateness and merit[,] does not contain
'non-negotiable' matters." Id. at 6, emphasis in original.

On November 28, 1988, the Umpire issued his final
decision, entitled "Decision On An Impasse In The 1988 HDQ. Flexitime
Negotiations." The Umpire noted the Agency's contentions that: (1) the Umpire
was in error to refuse jurisdiction; (2) management did not agree that Article
8.00 of the collective bargaining agreement was inapplicable; (3) the Umpire
should follow Article 8.06 of the agreement and select either the Agency's or
the Union's last best proposal; and (4) the negotiations had "dragged out for
entirely too long . . . because of the interests of union officials who prefer
the status quo." Final Decision at 3.

The Umpire noted the Union's contention that he lacked
contractual or procedural jurisdiction under Article 8.00 of the parties'
agreement because the dispute concerned a local matter and the procedures set
forth in Article 8.00 are not mandatory for local matters. The Union claimed
that the parties had not agreed to use the Article 8.00 procedures and asserted
that management's request for the Umpire's intervention was premature. Final
Decision at 3-4.

The Union also maintained that the Umpire lacked
jurisdiction for the following substantive reasons: (1) there was no impasse
and the Union had not made a "final" or "last working proposal;" (2) there had
been progress in the negotiations; (3) management was not negotiating because
it was submitting proposals in a format different from that used by the Union;
and (4) management was responsible for any delay in negotiations and in the
working out of ground rules, including resolution of the Union's claim of
entitlement to parking privileges at the Agency headquarters. Final Decision at
4-5.

The Umpire stated that the Union submitted a copy of an
award by the parties' National Arbitrator "which showed that the Union had
raised questions about management's requirement to: (1) establish a fixed
flexiband window in all its facilities, (2) negotiate provisions that provide
for slide and glide, and (3) negotiate at the local level modifications in the
use of time recording devices." Final Decision at 5. The Umpire also noted that
management submitted "Management's Final Offer Flexitime Proposal" and "Union
Counter Proposal # 4." Final Decision at 7.

The Umpire made the following award:

I. Based on the totality of Art. 8.00 of the [Collective
Bargaining Agreement] I find that:

1. The Umpire has jurisdiction over the dispute
Management submitted on October 31st 1988;

2. There exists an "Impasse" in the negotiations as to
the flexitime schedule for the headquarters units began [sic] in 1986 and still
ongoing as of the week prior to October 17 1988.

II. Based on a detailed analysis of the proposals
submitted I find that:

Based on all of the circumstances of this dispute the
"Management's Final Offer Flexitime Proposal" . . . dated Oct. 20th 1988 and
attached here to is the most reasonable and should be implemented by management
as soon as feasible.

Final Decision at 8.

IV. Positions of the Parties

A. Union's Exceptions

In its exceptions to the Umpire's decisions, the Union
contends that the Umpire exceeded his authority under Article 8.00, Sections
8.04, 8.05, and 8.06 of the collective bargaining agreement by assuming
jurisdiction over local negotiations. The Union asserts that "the National
Umpire exceeded his authority by issuing a final and binding award as to the
negotiability of three particular items within a union submission" and "by
issuing an impasse ruling . . . as to an impasse in the 1988 Headquarter[s]
Office and AFGE Local 2667[.]" Exceptions at 1. The Union also contends that
the Umpire exceeded his authority by billing the Union for one-half the cost of
the arbitration hearing.

The Union filed an additional statement in support of its
exceptions by letter dated February 14, 1989. In that statement, the Union
disputes the Agency's argument that the case is not properly before the
Authority because Section 8.06(b) of the agreement allows either party to
appeal the National Umpire's "advisory selection" to the Panel. The Union
states that it requested assistance from the Panel by letter dated December 19,
1988, and that the Panel declined to accept jurisdiction because the case
involved a matter of contract interpretation. The Union states that it
voluntarily withdrew its request from the Panel in January 1989. See
enclosure to Union letter of February 14, 1989; seealso, letter
dated January 18, 1989, signed by the Executive Director, Federal Service
Impasses Panel, granting the Union's request to withdraw its request for Panel
assistance. The Union also reiterates its position that the negotiations were
local and were intended only to develop a flexitime agreement at the Agency
headquarters and not for the entire Agency. The Union denies the Agency's
contention that this matter concerns contract interpretation and should be
referred to the National Arbitrator for resolution.

In a letter dated March 8, 1989, the Union submitted two
arbitration awards by the National Arbitrator. In the awards, each dated March
4, 1989, the National Arbitrator declined to review decisions of the National
Umpire concerning (1) the Fiscal Year 1989 General Performance Appraisal and
Recognition agreements and (2) ground rules procedures for
negotiations.

B. Agency's Opposition

The Agency states that it sought the assistance of the
National Umpire pursuant to Sections 8.05(b)(3) and 8.06 of the collective
bargaining agreement after the parties were unable to reach agreement and
complete negotiations over the flexitime program for employees of the Agency's
headquarters. The Agency asserts that the Umpire had jurisdiction over the
matter and that he properly selected the Agency's last best offer as the one
which the parties should incorporate into their agreement.

The Agency contends that the Authority does not have
jurisdiction to rule on the Union's exceptions. The Agency points out that
Article 8.00 of the collective bargaining agreement contains alternative
dispute resolution procedures which "constitute the 'sole procedure' for
conducting and resolving negotiations of matters for which there is an
obligation to conduct implementation and impact bargaining." Opposition at 2.
The Agency also points out that Section 8.06(b) provides that either party may
appeal the National Umpire's decision to the Panel.

The Agency contends that, in the event the Union's
exceptions are properly before the Authority, the Union has failed to
demonstrate that the award does not draw its essence from the parties'
agreement or that the National Umpire exceeded his authority by making a
finding resolving the parties' negotiation impasse. The Agency denies that the
matter submitted to the National Umpire was local and not national in scope and
therefore outside the purview of the agreement. Rather, the Agency maintains
that flexitime is a national issue which is subject to the provisions of the
collective bargaining agreement.

The Agency also maintains that the issue in this case is
a matter of contract interpretation which should be decided by the National
Arbitrator. The Agency contends that the Union is only disagreeing with the
National Umpire's "decision to exercise jurisdiction pursuant to Article
8.00 of the CBA" and that "disagreement with the factfinder" is not a basis
for setting aside an award. Opposition at 4. The Agency denies that the Umpire
disregarded any limitation on his authority.

The Agency states that the Union's exception concerning
the allocation of the costs of the Umpire between the parties is moot because
the erroneous billing has been corrected.

C. Additional Submissions

Both parties filed additional submissions which we have
accepted and considered.

1. The Agency

By letter dated May 26, 1989, the Agency advised the
Authority that "[o]n May 9, 1989, Management and Local 2667 resolved their
differences regarding the Umpire's award and the Headquarters Flexitime Program
which was implemented pursuant to that award." The Agency also stated that
Local 2667 had withdrawn three unfair labor practice charges and one grievance
which it had filed in connection with the matter. The Agency enclosed letters
dated April 28, 1989, signed by the Regional Director of the Authority's Region
3 approving withdrawal of unfair labor practice charges in Case Nos.
3-CA-90433, 3-CA-90285, and 3-CA-90286. The Agency contends that the agreement
with Local 2667 renders the dispute in this case moot and requests that the
Union's exceptions be dismissed.

2. The Union

The Union responded to the Agency's request to dismiss
the exceptions as moot by letter dated June 12, 1989. The Union maintains that
the National Council of EEOC Locals is the certified exclusive representative
of all Agency bargaining unit employees nationwide and denies that the dispute
concerning flexitime at the Agency headquarters has been settled. The Union
contends that under Section 4.02 of the collective bargaining agreement, a
local agreement cannot be effective until reviewed by the National Council of
EEOC Locals No. 216. The Union attached a letter dated June 12, 1989 in which
it advised the Agency that the Union was withholding consent to the
headquarters flexitime agreement. The Union states that the issues raised in
its original appeal to the Authority remain the same and requests that the
Authority issue a decision in this matter.

V. Analysis and Conclusion

We find that the Umpire's interim and final decisions are
advisory and, therefore, do not constitute binding arbitration awards to which
exceptions may be filed under section 7122(a) of the Statute. Therefore, the
Authority is without jurisdiction to consider the Union's exceptions and the
exceptions will be dismissed.

A. Arbitration Under the Statute

Under the Statute, parties to negotiations may use
voluntary arrangements, including interest arbitration, to resolve bargaining
impasses. 5 U.S.C. º 7119(b); 5 C.F.R. º 2471.1. However, parties may
agree to adopt a procedure for binding interest arbitration only if the
procedure is approved by the Panel under section 7119 of the Statute.
SeeNational Treasury Employees Union and Department of Treasury,
Internal Revenue Service, 35 FLRA 7, 12 (1990). SeealsoUnited States Department of Justice, Immigration and Naturalization Service
and American Federation of Government Employees, National Border Patrol
Council, 31 FLRA 1123, 1126 (1988), in which the Authority stated that the
"requirement for Panel approval before the parties may use binding interest
arbitration is the only restriction on the use of binding interest arbitration
expressed in the Statute."

Section 7122(a) of the Statute states that "[e]ither
party to arbitration under [the Statute]" may file exceptions to an
arbitrator's award, with certain exclusions not relevant here. "[A]rbitration
under [the Statute]" consists of either binding interest arbitration awards
that result from a procedure approved by the Federal Service Impasses Panel (5
U.S.C. º 7119(b)(2)) or binding grievance arbitration (5 U.S.C. § 7121(b)(3)(C)). Therefore, the only kinds of arbitration awards to which
exceptions may be filed under section 7122(a) of the Statute are binding
interest arbitration awards that result from a procedure approved by the Panel
and binding grievance arbitration awards.

B. The Umpire's Impasse Decisions Are Not
Binding Arbitration Awards To Which Exceptions May Be Filed Under
Section 7122(a) of the Statute

We conclude that the Umpire's interim and final decisions
in which he made determinations as to which bargaining proposals the parties
shall adopt in their agreement do not constitute binding arbitration awards to
which exceptions may be filed under section 7122(a) of the Statute. Under the
plain language of Section 8.06 of the parties' agreement, the Umpire's
decisions constitute only advisory selection of the parties' final offers.
Further, because the parties' final offer selection procedure is advisory and
not binding, the procedure does not require approval of the Panel and thus does
not come within the scope of section 7119 of the Statute. Moreover, there can
be no contention that the Umpire's decisions constitute grievance arbitration
under section 7121 of the Statute.

Accordingly, inasmuch as the Umpire's decisions are not
binding arbitration awards under section 7119(b)(2) or section 7121(b)(3)(C),
the Authority lacks jurisdiction under section 7122(a) to review exceptions to
those decisions. SeeU.S. Department of Defense, Defense Mapping
Agency, Hydrographic Topographic Center and American Federation of Government
Employees, Local 3407, 34 FLRA 44 (1990) (the Authority does not have
jurisdiction under section 7122(a) to review exceptions to decisions which did
not result from binding arbitration awards); American Federation of
Government Employees Council, San Francisco Region and Department of Health and
Human Services, Social Security Administration, 9 FLRA 161 (1982)
(SSA) (advisory hearing procedure established as part of process for
reaching a final agency decision on proposed adverse action is not a matter for
which a party can obtain Authority review under section 7122(a) of the
Statute).

We note that the Umpire designated his decisions as
"final and binding." Interim Decision at 1; Final Decision at 1. However, in
view of the Umpire's statements that the decisions were made "Pursuant to Art.
8.00, Section 8.06" of the agreement (Id.), and that the decisions were
"Based on Art. 8.00, Section 8.06" (Interim Decision at 6) and "Based [on] the
totality of Art. 8.00 of the CBA" (Final Decision at 8), we conclude that the
Umpire's decisions on the impasse matters are advisory final offer selections,
not binding arbitration awards to which exceptions may be filed under section
7122(a). The Umpire's decisions, like the arbitration in SSA, were "not
under the province of the Statute, and thus there is no basis under the Statute
for the Authority to review exceptions" to the Umpire's decisions. SSA,
9 FLRA at 163.

Because the Authority does not have jurisdiction to
consider exceptions to the Umpire's advisory decisions, the Union's exceptions
must be dismissed.(3)

VI. Order

The Union's exceptions to the Umpire's advisory final
offer selection decisions under Section 8.06 of the agreement are dismissed for
lack of Authority jurisdiction. In view of the Agency's uncontroverted
statement that it has corrected the erroneous billing for the Umpire's
services, that portion of the Union's exceptions is dismissed as
moot.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. Member Talkin did not
participate in this decision because the case involves the Equal Employment
Opportunity Commission and a dispute which arose while she was Chief of Staff
of the Commission.

2. The Union also requested a
stay of the award when it filed its exceptions to the award with the Authority
on December 14, 1988. Effective December 31, 1986, the Authority's Regulations
were revised to revoke those portions pertaining to the filing of requests for
stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the
stay request was taken.